Citation Nr: 18102498
Decision Date: 05/15/18 Archive Date: 05/15/18
DOCKET NO. 08-05 280
DATE: May 15, 2018
REMANDED ISSUE
The issue of entitlement to bilateral cataracts is remanded.
The Veteran served on active duty from January 1954 to January 1956.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from February 2007 and June 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.
In August 2011, the Veteran appeared at a hearing before a Veterans Law Judge who is no longer employed at the Board. In January 2018, the Board sent the Veteran a letter asking him if he wished to have another Board hearing in this matter. In February 2018, he declined to have another hearing.
In October 2011 and May 2015, the Board remanded this appeal.
Entitlement to service connection for bilateral cataracts, to include as due to exposure to ionizing radiation.
Remand is needed to estimate the Veteran’s radiation exposure in light of his assertion that the July 2017 dose estimate is less than his actual exposure.
The Veteran asserts that the July 2017 estimate is erroneously based on the average of 15 atomic bomb detonations performed during Operation Teapot. The Veteran explains that his unit, the 723rd Tank Battalion, only participated in “Apple II,” which was the biggest detonation (30,000-35,000 kiloton bomb) during Operation Teapot. The Veteran further explains that he observed the blast through a tank periscope approximately 3,000 yards away from ground zero. Then, within eight minutes after the blast, his unit travelled as close as 1,000 yards from ground zero, where they collected data for approximately 1.5 hours. See, e.g., Statement (January 4, 2018).
The Board acknowledges that the Veteran’s account of Apple II is consistent with that provided in Razor Shaves Big Apple 2, The Army Combat Forces Journal (June 1955), received by VA in September 2009.
The Veteran also reports that all of the men in his tank unit have had cataracts. See, e.g., Statement (January 4, 2018).
The July 2017 dose estimate indicates that the Veteran was exposed to 18 rem of external gamma, 2 rem of external neutron, and 550 rem of total skin dose to any skin area (beta plus gamma). The Board notes that the estimate does not indicate whether it is based upon the average of a series of detonations (as the Veteran asserts) or contemplates the specific circumstances of the Veteran’s exposure (e.g., proximity to detonation, time spent within 1,000 yards of ground zero, etc.)
Based on the July 2017 estimate, in August 2017, the Director of the Post 9/11-Era Environmental Health Program opined that it is less likely than not that the Veteran’s in-service exposure to ionizing radiation caused his cataracts, which were initially diagnosed 55 years after separation from service. As to the relationship between the Veteran’s radiation exposure and cataracts, the Director cited a medial study showing that the maximum likelihood dose threshold for Stage I posterior subcapsular cataracts was 35 rad with a 95 percent confidence interval of 19-66 rad. The Director further noted that the Veteran’s radiation dose to the eye was less than 16.5 rem, and thus, beneath the lower threshold.
As the Veteran’s estimated exposure (16.5 rem) is close to lower threshold of the 95 percent confidence interval (19-66 rad), the Board finds that remand is needed to prepare a new dosage estimate that contemplates the circumstances of the Veteran’s exposure as enumerated in his January 2018 statement and Razor Shaves Big Apple 2, The Army Combat Forces Journal (June 1955). Indeed, dose estimates are to contemplate all records containing information pertaining to in-service radiation exposure. See 38 C.F.R. § 3.311(a)(2)(iii) (2017).
The matter is REMANDED for the following action:
1. Obtain a dose estimate from the VA Under Secretary for Health that is specific to posterior subcapsular cataracts. The estimate is to contemplate the circumstances of the Veteran’s exposure as enumerated in his January 2018 statement and Razor Shaves Big Apple 2, The Army Combat Forces Journal (June 1955), received by VA in September 2009.
2. After obtaining the dose estimate, the RO should then complete the development and adjudication as specified in 38 C.F.R. § 3.311.
3. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board.
STEVEN D. REISS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel